August 19, 2022
Island Life Chiropractic Pain Care, PLLC v American Ind. Ins. Co. (2022 NY Slip Op 50901(U))
https://www.beynensonlaw.com/case-law/island-life-chiropractic-pain-care-pllc-v-american-ind-ins-co-2022-ny-slip-op50901u/
- Decided
- August 19, 2022
- Citation
- 2022 NY Slip Op 50901(U)
- Posture
- Motion to dismiss (CPLR 3211)
- Outcome
- Split result
- Issues
- Jurisdiction and service
- Legal questions
- Service and jurisdiction over the insurer (see the maps)
Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.
Summary
Editorial summary by Beynenson Law, not part of the court’s decision.
Reported in New York Official Reports at Island Life Chiropractic Pain Care, PLLC v American Ind. Ins. Co. (2022 NY Slip Op 50901(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
American Independent Ins. Co., Omni Indemnity Company, American Independent Insurance Companies, Inc. and Good2Go Auto Insurance, Appellants.
Freiberg, Peck & Kang, LLP (Yilo J. Kang of counsel), for appellant. The Rybak Firm, PLLC (Oleg Rybak, Esq.), for respondent (no brief filed).
Appeal from an order of the Civil Court of the City of New York, Kings County (Consuelo Mallafre Melendez, J.), entered November 4, 2019. The order insofar as appealed from, denied the branches of defendants’ joint motion seeking to dismiss so much of the complaint as was asserted against American Independent Ins. Co., American Independent Insurance Companies, Inc., and Good2Go Auto Insurance, respectively.
ORDERED that so much of the appeal as is by Omni Indemnity Company is dismissed, as Omni Indemnity Company is not aggrieved by the order, insofar as appealed from (see CPLR 5511; Rinaldi v Evenflo Co., Inc., 62 AD3d 856 [2009]); and it is further,
ORDERED that the order, insofar as appealed from, is modified by providing that the branches of the motion seeking to dismiss so much of the complaint as was asserted against American Independent Ins. Co. and American Independent Insurance Companies, Inc., respectively, are granted; as so modified, the order, insofar as appealed from, is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendants appeal from so much of an order as denied the branches of defendants’ joint motion seeking to dismiss so much of the complaint as was asserted against defendants American Independent Ins. [*2]Co., American Independent Insurance Companies, Inc., and Good2Go Auto Insurance, respectively.
Defendants based their motion on CPLR 3211 (a) (8). In multiple affidavits in support of the motion, defendant American Independent Ins. Co.’s employees asserted that defendant is a Pennsylvania company, which is not licensed to do business in New York, maintains no offices in New York, has no agents operating out of, or representatives soliciting business in, New York, and does not own, use or possess any real property in New York. Furthermore, defendant American Independent Ins. Co. argued that it had been held in prior cases that the courts in the State of New York cannot exercise personal jurisdiction over it (see e.g. Matter of Eagle Ins. Co. v Gutierrez-Guzman, 21 AD3d 489 [2005]). Plaintiff cross-moved for summary judgment and opposed the motion with an “affirmation” by its counsel, who made unsupported assertions that, among other things, defendant American Independent Ins. Co. had transacted business in New York by knowingly issuing policies to New York drivers, and that American Independent Ins. Co. had established an ongoing relationship with defense counsel in New York, thereby subjecting American Independent Ins. Co. to jurisdiction in New York. For the reasons stated in Excel Prods., Inc. v American Ind. Ins. Co. (65 Misc 3d 157[A], 2019 NY Slip Op 51964[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]), the branch of the motion by defendant American Independent Ins. Co. seeking to dismiss the complaint insofar as asserted against it should have been granted. In addition, because the “affirmation” submitted by plaintiff’s counsel is unsigned, the affirmation is of no probative value (see WJJ Acupuncture, P.C. v Liberty Mut. Fire Ins. Co., 26 Misc 3d 135[A], 2010 NY Slip Op 50146[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]) and plaintiff failed to satisfy its burden of making a prima facie showing that there was personal jurisdiction over American Independent Ins. Co. (see Hopstein v Cohen, 143 AD3d 859 [2016]).
Similarly, after defendant American Independent Insurance Companies, Inc. contested jurisdiction, “plaintiff need[ed] only make a prima facie showing that such jurisdiction exists” (Hopstein, 143 AD3d at 860 [internal quotation marks omitted]; see also Lang v Wycoff Hgts. Med. Ctr., 55 AD3d 793 [2008]). In the instant case, the only proof that service of process was made upon American Independent Insurance Companies, Inc. consisted of affidavits of service stating that service was made upon defendant Good2Go Auto Insurance. Consequently, the branch of the motion by defendant American Independent Insurance Companies, Inc. seeking to dismiss the complaint insofar as asserted against it should have been granted.
To the extent defendant Good2Go Auto Insurance moved to dismiss the complaint insofar as asserted against it, plaintiff’s opposition papers contained copies of affidavits of service reflecting that service was made upon Good2Go Auto Insurance. In its reply papers, Good2Go Auto Insurance made no attempt to demonstrate that the person served was not “an officer, director, managing or general agent, or cashier or assistant cashier or to any other agent authorized by appointment or by law to receive service” (CPLR 311 [1]). As a result, Good2Go Auto Insurance failed to demonstrate a basis to disturb so much of the order as denied the branch of the motion by defendant Good2Go Auto Insurance seeking to dismiss the complaint insofar as asserted against it.
Accordingly, the order, insofar as appealed from, is modified by providing that the branches of the motion seeking to dismiss so much of the complaint as was asserted against [*3]American Independent Ins. Co. and American Independent Insurance Companies, Inc., respectively, are granted.
ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.
ENTER:Paul Kenny
Chief Clerk
Decision Date: August 19, 2022
Legal questions
A question of no-fault law this decision rules on, from our Legal Questions pages. Bars count the decisions on the question by year and court, coloured by category; circles are this decision and the decisions on the question it cites or that cite it. Point at a bar or circle for details. The categories and summaries are Beynenson Law’s classification, made by a language model and checked by a second reading.
Was the insurer validly served with process, and does the court have personal jurisdiction over it?
This decision: Insurer (usually out-of-state) not subject to the forum's jurisdiction; plaintiff did not show a basis
Held the Pennsylvania insurer, unlicensed and without New York offices or agents, not subject to jurisdiction because plaintiff's unsigned counsel affirmation made no prima facie showing; a related entity was dismissed for lack of service proof, while the third defendant's challenge failed.
Of the 129 decisions on this question in the Second Department courts and the Court of Appeals, 57 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- Excel Prods., Inc. v American Ind. Ins. Co. (2019 NY Slip Op 51964(U)) FollowedThe provider failed to establish personal jurisdiction over the out-of-state insurer through an attorney affirmation lacking personal knowledge.
- WJJ Acupuncture, P.C. v Liberty Mut. Fire Ins. Co. (2010 NY Slip Op 50146(U)) FollowedThe provider failed to establish its prima facie case because its owner's affidavit was unsigned and counsel's affirmation was insufficient.
Similar decisions
- Tam Med. Supply Corp. v American Ind. Ins. Co. (2022 NY Slip Op 50913(U))The three appealing defendants' motions to dismiss for lack of personal jurisdiction were granted on appeal.
- Longevity Med. Supply, Inc. v American Ind. Ins. Co. (2020 NY Slip Op 51118(U))The provider failed to obtain personal jurisdiction over the insurers because it did not establish completed mailed service or timely alternative service.
- Gc Chiropractic, P.C. v American Ind. Ins. Co. (2021 NY Slip Op 51202(U))The appealing insurer lacked aggrievement from denial of a codefendant insurer's jurisdictional motion and the provider's cross motion.
- Island Life Chiropractic Pain Care, PLLC v Omni Indem. Co. (2019 NY Slip Op 50342(U))The defendant insurer's affidavits established that another carrier issued the policy covering the accident, warranting dismissal.
- Pierre J. Renelique, M.D., P.C. v American Ind. Ins. Co. (2019 NY Slip Op 51736(U))The provider failed to establish personal jurisdiction over the out-of-state insurer through counsel's unsupported affirmation.